The author analyzes the Bill through both a legal and a social perspective. He argues first that the Bill amounts to abuses of human rights and fundamental freedoms Uganda has committed itself to respect. In addition, the author studies how the Ugandan society per- ceives the Bill and homosexuality in general. He observes that there is a new wave of homophobia in the African country and elaborates several hypothesis to explain this fact.

The main purpose of the thesis is to understand the problematic aspect of an egregious piece of legislation and analyze the arguments of those Ugandans for whom homosexuality is something that goes against national culture as well as what influences their way of thinking.

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II

Acknowledgments

This thesis is dedicated to all the members of the LGBT-community in Uganda. I look up to these people for being able to live openly as homosexuals even though their lives are at risk. I wish them the best of luck in the future.

I would like to thank all the Ugandans that have participated and given their testimonies in this thesis. An important part of this work would have been impossible to write without them.

I want to thank as well my supervisor Stener Ekern, Associate Professor at the Norwegian Centre for Human Rights, for his help and kindness.

Finally, I wish to express my gratitude too to the employees of the different NGOs I have been in contact with for the purposes of my research: Sandra Petersen (Executive Director of the Norwegian Human Rights Fund), Patricia Kaatee (Political Advisor for Amnesty International Norway), Marna Eide (Advisor in the International Department of LLH) and the staff of KIOS (The Finnish NGO Foundation for Human Rights). Thank you for all the information and contacts you have provided me with.

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III Abbreviations

LGBT – Lesbian, Gay, Bisexual and Transexual UN – United Nations

NGO – Non-Governmental Organization

LLH – Norwegian Association for lesbians, gays, bisexuals and transgender people KIOS - Finnish NGO Foundation for Human Rights

EHAHRDP - East and Horn of Africa Human Rights Defenders Project GEHO - Gender Equality and Health Organization

UDHR – Universal Declaration of Human Rights HIV - Human Immunodeficiency Virus

SMUG - Sexual Minorities Uganda

AIDS - Acquired Immune Deficiency Syndrome

ICESCR - The International Covenant on Economic, Social and Cultural Rights ICCPR - The International Covenant on Civil and Political Rights

CAT - The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

HRC – Human Rights Committee HRD – Human Rights Defenders AU – African Union

IT – Information Technology

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IV UNICEF - The United Nations' Children's Fund

PRA - Political Research Associates NPR - National Public Radio

JATT - Uganda’s Joint Anti-Terrorism Task Force

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V Map 1: Africa (source: mapsofworld.com)

Map 2: Uganda (source: Click Afrique 2008)

UGANDA

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VI

After reading this, it should not come as a shock to find out that in Uganda, LGBT-people are tortured, imprisoned, beaten up and disowned only because of their sexual orientation. Most of them must go into hiding and live in slums where they barely survive because nobody will employ them. And why would not there be employment opportunities for most of them? Be- cause some national magazines release the pictures and names of homosexuals they know of so that everyone can point at them and isolate them from the society (“Hang them”, wrote

“The Rolling Stone” newspaper when it outed ten homosexuals on its front page). However, the most powerful bomb was just about to explode and now it has. The Ugandan Parliament passed a law proposal known as “the Anti-Homosexuality Bill” on 20December, 2013. The Anti-Homosexuality Bill, also known as the Anti-Gay Bill or “Kill The Gays” Bill, has been one of the most commented issues in 2013. The Bill punishes homosexuality severely and puts obstacles to the work of Uganda-based people and institutions that try to protect the rights of the LGBT-community.

A lot of thoughts and questions invaded my head after finding out about this issue. I decided it could be a very interesting thesis topic and also a useful piece of work.

The testimonies I heard in the documentary showed a perception on homosexuality that was very difficult for me to understand. I grew up in Spain, a country where, even if homophobia exists, it does not affect the LGBT-community to an extent preventing its members from inte-

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2 grating in the society. For this reason, I became very interested in finding out what is it that makes Ugandans dislike homosexuals so much.

I made some research to find out if homosexuals had been persecuted in the past and I did not find any evidence of violence. Something must then have awakened this new wave of homophobia. People do not wake up one day and decide, all together and the same time, to mobi- lize against a group. One thing is to consider that being homosexual is not natural and another thing is to pass a law that punishes homosexuality with the harshest penalties. This was, from my point of view, a clear expression of hate and I wondered what could be the reason for that hate.

Finally, I saw that Uganda had ratified certain international human rights treaties and that the national Constitution had human rights provisions. I then wondered why the country would support a Bill that so obviously violates the rights it has committed itself to respect.

All these reflections and hypothesis led me to select the Anti-Gay Bill as the topic of my mas- ter thesis.

1.1. Research question and methodology

In this thesis, I will address the issue of the Anti-Homosexuality Bill from a legal and a social perspective. This interdisciplinary approach will have two main focuses: firstly, I will analyze how and to what extent the Bill amounts to a violation of the human rights recognized in the international treaties acceded to by Uganda; secondly, I will write about how this legal text and homosexuality in general are perceived in the Ugandan society as well as how deep that perception is, when it started and by what means it has spread. Concerning this second focus, the following sub-questions come to the surface:

-The position that has officially been adopted by the Government is that homosexuality did not exist in Uganda until Western countries imported it. The current president of Uganda ,Yoweri Museveni, in a meeting with America’s Robert F Kennedy Centre for Justice and

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3 Human Rights, defined gay people as “deviants” and accused European countries of trying to promote homosexuality and sexual liberalization. Museveni’s wife was also at that meeting and declared that: “You (Westerners) have imposed on us enough of your bad practices, right from guns, and we shall not allow homosexuality in Uganda because the Bible forbids it”.¹ However, some of the testimonies that I have collected declare that there have always been homosexuals in Uganda. Furthermore, in these settings a debate about whether a homosexual is born or induced is of great importance. It is my personal opinion that homosexuality is not an acquired behavior but something one is born with. Taking this into account, is there any way the West could have pushed it into the country?

-The second question concerns Uganda’s traditional values and culture. In the interviews that I have conducted, most Ugandans state that homosexuality goes against both religious teachings and national culture and that this is the reason why the population does not approve of it.

Government and religious leaders back this affirmation. What I wonder here is: what do they mean by culture? A couple of possibilities come to the surface but my research makes me suspect that when Ugandans talk about culture they refer to religious family values, particularly to the fact that a man has to enter marriage with a woman and have children. However, I argue that, even though the religion-backed traditional family is the most common type of unions, culture in Uganda is not homogenous. There are tribes that maintain certain traditions that do not match with the traditional idea of a marriage. In addition, many Ugandans do not respect the institution of marriage in practice. Given these variations, I will support that homosexuals should not be considered a threat to national traditional values.

-The third sub question brings American Evangelicals into the picture. In 2009, missions of American Evangelicals started to land in Uganda. A campaign pro family values was initiated but turned soon into a crusade against LGBT-people. According to my findings, it was after the start of this campaign that the violence against the LGBT-community started. The way I have interpreted the testimonies, documentaries and articles I have had access to, it is my hy-

1Roberts, Scott. Wife of Uganda’s president denies Anti-Homosexuality Bill is designed for persecuting gays http://www.pinknews.co.uk/2013/04/01/wife-of-ugandas-president-denies-anti-homosexuality-bill-is-designed- for-persecuting-gays/

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4 pothesis that the Ugandan population are being brainwashed by American evangelicals, who have been spreading hate in conferences, seminars and schools. I want to clarify the term

“brainwashing”, a term that can be vague because it has been used in different contexts.

Brainwashing is defined as “an indoctrination process which results in "an impairment of au- tonomy, an inability to think independently, and a disruption of beliefs and affiliations. In this context, brainwashing refers to the involuntary reeducation of basic beliefs and values”.² The term was used for the first time by newspaperman Edward Hunter in a series of articles and books he wrote about certain methodologies of coercive persuasion used under the Maoist government in China. As the Palm Beach Post published in 2003, "during the Korean War, American soldiers were subjected to prolonged interrogations by their captors, who often worked in relays and used the "good-cop, bad-cop" approach, alternating a brutal interroga- tor with a gentle one. The Chinese and Koreans were making valiant attempts to convert the captives to the communist way of thought”.³ In the 1960s brainwashing started to be connect- ed to religion. It was blamed for the fact that many American youths converted to religious beliefs that differed greatly from those of their families and friends, with whom they broke contact with in many cases.⁴ When I talk about brainwashing in Uganda I refer mostly to the religious context. I perceive that American Evangelicals use religion to influence people’s minds to an extent making them think that homosexuality is evil. As a result, homophobia spreads in the society. This is only a hypothesis that I believe I can prove with the following argument: Religion is the pillar of most Ugandans’ life (at least this is what my research has made me conclude). Ugandans listen to pastors when they talk and trust them. Religion is all over. As I will show later, American Evangelicals are aware of this fact and they seem to have taken advantage of it. I have collected conferences given by them that put homosexuality in a very disadvantaged position. In addition, their religious teachings are all over in Uganda: at

2 Kowal, D. M. (2000). Brainwashing. In A. E. Kazdin (Ed.), Encyclopedia of psychology, Vol. 1 (pp. 463-464).

American Psychological Association

http://psycnet.apa.org/index.cfm?fa=search.displayRecord&uid=2004-12755-173

3 Browning, Michael (2003-03-14). "Was Kidnapped Utah Teen Brainwashed?" Palm Beach Post (Palm Beach).

ISSN 1528-5758

4 Bromley, David G. (1998). "Brainwashing". In William H. Swatos Jr. (Ed.). Encyclopedia of Religion and

Society. Walnut Creek, CA: AltaMira. pp. 61–62. ISBN 978-0-7619-8956-1

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5 the store, on the bus, on the streets … Everywhere you go you will find missions of American Evangelicals. I will develop this argument later in the sections devoted to my research question.

-Finally, another arising sub-question is the interest of the government in the enactment of the Anti-Homosexuality Bill. My main argument in this case will be that the government has enacted the Bill because it wishes to get the population’s minds off other problems in national society. In the last few years, there have been big demonstrations in Uganda against corrup- tion and high prices. The government has also been accused of carrying out torture practices.

But these issues are no longer what media talks about. The Anti-Homosexuality Bill is what fills media right now. Moreover, the population reacts positively when somebody rejects homosexuality and I will provide some examples of that. Finally and as I will show later, it is not the first time that the authorities of a country turn against a vulnerable group in order to clean up its reputation.

1.1.1. Interdisciplinary approach

The reason why I decided to analyze the Anti-Homosexuality Bill not only from a strict legal perspective but also through the eyes of the society is that I find essential to study and understand people’s minds before trying to understand the laws governing them. From my point of view, an analysis of a certain law without looking at the society could end up being simple and shallow. Moreover, in this thesis I am not only describing the Ugandan Bill as it is but I am also evaluating it, so all the more reason to study the population in order to come up with richer conclusions, arguments and hypothesis.

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6 1.1.2. Methodology and sources

The sources that I have used range from testimonies of Ugandan people to articles and documentaries on the issue. I have also resorted to legislation as well as general comments and reports from treaty and United Nations (UN) bodies to carry out my legal analysis.

As for the methodology, in the legal part I will first go through the provisions of the Bill and demonstrate how it violates human rights by looking at the national Constitution and the treaties and conventions Uganda is bound to. I will strengthen my arguments with general comments and reports drafted by commissions, treaty committees and other UN bodies. As for the social science part, I will analyze the testimonies of the Ugandans who agreed to participate in this project and discuss the common perceptions of homosexuality, human rights and the An- ti-Gay Bill among Ugandans. I will build my hypothesis on the different sub questions by way of interpreting these testimonies along with the evidence that I have collected through my own independent research.

1.1.3. Limitations of the study

The main limitation that I have faced during my investigation process is the fact that I have not been able to travel to Uganda to do field work. However, I have conducted a series of interviews with Ugandans who live in Norway, the country where I have resided in during the writing process. I also prepared a questionnaire related to the topic that has been answered by 13 Ugandans. Some of the interviewees refused to give their names on the grounds of fear although the majority agreed to give their initials.

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7 1.1.4. A note on the sources

I have not followed any special criteria to select the interviewees. Since I could not travel to the African country, I could only contact Ugandans I was referred to by employees of different NGOs I have collaborated with, particularly Amnesty International Norway, LLH, the Norwegian Human Rights Fund and the Finnish NGO Foundation for Human Rights (KIOS).

1.1.5. Organization of the thesis

I have divided my thesis into four sections:

1. The first section will be devoted to explaining the concept of LGBT and presenting the current situation of the LGBT-community in Uganda. I will also give a few remarks on Uganda as a country.

2. The second section will show the content of the Anti-Homosexuality Bill and include an analysis of its possible effects. I will also mention the provisions of the Penal Code that crim- inalize homosexuality.

3. The third section is a legal assessment of the human rights and freedoms the Ugandan act violates and the legislation it is infringing.

4. The perceptions of the Ugandan society concerning the Bill, homosexuality and human rights will be covered in the fourth section. I will also explain in this section my hypothesis concerning the four research sub questions.

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8 2. Background

2.1. Uganda Uganda lies astride the Equator in Eastern Africa. It is bordered by South Sudan to the North,

Kenya to the East, Congo to the West and Tanzania and Rwanda to the South. It is made up of four regions (Central, Eastern, Northern and Western) and its capital is Kampala.

Uganda has more than 31 million inhabitants and religion plays an important part of daily life.

Most people follow the Catholic and the Anglican religions (41% and 40% of the population respectively). Around 10% are Muslims, a legacy of the Arab traders of the 19th century.

The state is a sovereign democracy governed by the 1995 Constitution. The President is the Head of both the State and the Executive and only those above 18 years of age are entitled to vote.

In 1894, Uganda was placed under a British protectorate, from which it was granted inde- pendence in 1962.⁵ When the British arrived in Uganda, there were over thirty ethnic and cultural groups that spoke different languages. In the last decades, colonialism, education, easy transport and urbanization have unified the population and made it more difficult to dif- ferentiate individuals by ethnic origin. Nowadays two big groups can be identified in Uganda according to language and culture:

-The Bantu: Living mostly in the South. The largest group (around a fifth of the population) is the Baganda, who live in the Kampala region and speak Luganda.

-The Nilotics: living mostly in Northern and Eastern Uganda.⁶

5 Information available at http://www.visituganda.com/about-uganda/

6 Prime Uganda Safaris, 2012. People & Cultures of Uganda

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9 Uganda is a member of the African Union (AU), established through the adoption of the Con- stitutive Act in the Lome Summit in Togo on 11 July, 2000. Article 3 (h) of this Act provides that one of the main objectives of the Union is to “promote and protect humans and peoples’

rights in accordance with the African Charter on Human and Peoples’ Rights and other rele- vant human rights instruments”. The Charter this article talks about was adopted June 27, 1981 and entered into forced 21 October, 1986. Africa has a Commission, the African Com- mission, which is in charge of implementing the Charter and a Court, the African Court of Justice and Human Rights, which has contentious and advisory jurisdiction on human rights issues.⁷

2.2. LGBT

LGBT stands for lesbian, gay, bisexual and transgender and, along with heterosexual, it de- scribes people's sexual orientation or gender identity.

Sexual orientation refers to a pattern of emotional, romantic, and/or sexual attractions to men, women or both. It also refers to a person's sense of identity based on those attractions. Three sexual orientations are commonly recognized: heterosexual, homosexual and bisexual. A homosexual man is one who is romantically, sexually and/or emotionally attracted to men. A homosexual woman is one who is romantically, sexually and/or emotionally attracted to women. A bisexual person is someone who is romantically, sexually and/or emotionally attracted to both sexes.

Gender identity refers to whether one feels male, female or transgender regardless of one's biological sex. Within transgender, we must distinguish between: a) Transsexual people, who are those who live or wish to live as members of the gender other than that assigned at birth.

The process of transitioning from one gender to another is called gender reassignment.

http://www.primeugandasafaris.com/uganda/people-cultures-of-uganda.html

7 Javaid Rehman, International Human Rights Law (Pearson, 2nd ed., 2010), pp. 306, 308, 309, 328 and 332

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10 b) Transvestite or cross-dressing individuals, who are fine with their gender but wear clothes considered appropriate to a different gender.

Finally, we call homophobia the hatred, prejudice and/or discrimination against lesbian, gay and bisexual people as well as the dislike of same-sex attraction and love. Transphobia refers to hatred, prejudice and/or discrimination against people who are transsexuals.⁸

2.3. The situation of the LGBT-community in Uganda

Homosexuality is illegal in 83 countries on the planet. 38 of those countries are African (see Attachments 3 and 4). In a report entitled "Making Love a Crime: Criminalization of same- sex conduct in sub-Saharan Africa", Amnesty International highlights that in the last five years African countries such as South Sudan, Liberia, Uganda and Nigeria have introduced new laws criminalizing same-sex relations. In Nigeria, a new law was recently passed by the Parliament and signed by the president, Goodluck Jonathan. This law punishes gay marriage with up to fourteen years in jail and membership or encouragement of gay clubs, societies and organizations with up to ten years.⁹ In Uganda, the situation for the LGBT-community is extremely difficult. Love and sex between to persons of the same gender are criminalized and, consequently, homosexuals are constantly discriminated against and persecuted. Amnesty International has many times documented cases of people who have been tortured, arrested and imprisoned solely because of their sexual orientation.¹⁰ Harassment and violence on the

8 LGBT Helpline. What Is LGBT?

http://www.lgbt.ie/information.aspx?contentid=84

9 BBC, 2013. 25.06.2013. Amnesty International condemns 'homophobia' in Africa

http://www.bbc.co.uk/news/world-africa-23033423.

10 Amnesty International Norway, 2012. Holst-Pedersen Kvam, Ina. 22. 06.2012. Farlig for homofile i Uganda

http://www.amnesty.no/aktuelt/flere-nyheter/farlig-homofile-i-uganda

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11 part of government officials and the society are also a part of the LGBT-community’s daily life. Their members are often kicked out of their homes, their offices get ransacked and razed and they are accused of molesting children and recruiting people into becoming homosexuals.

11 During this thesis, I will give many examples that evidence the national attitude towards LGBT. For instance, in June 2012, the Ugandan police raided a human rights conference or- ganized in a hotel in Kampala by East and Horn of Africa Human Rights Defenders Project (EHAHRDP) to raise awareness on LGBT rights. The police, without any valid justification, threatened the people who were taking part in the conference, forced them to abandon the hotel and arrested many of them.¹²

Ugandan gay rights activist Andrew Waiswa is the founder and executive director of Gender Equality and Health Organization (GEHO), a queer organization in Uganda. He provides ac- commodation (the so-called safe houses) and support for gay people who must live in

hiding. He admitted to be overwhelmed by the increasing number of people asking for his help. “I set up the safe houses because I could not stand the pain of being picked up by the police, thrown in a cell, questioned and treated badly. Most people just hang themselves or take poison or commit suicide”. Waiswa left Uganda one year after the release of the Anti- Homosexuality Bill. The young activist declares that “Things got so hot. The bill has forced several of our LGBT members into hiding. Some have been chased out of their families, ban- ished from their clans, thrown out by their landlords or workplaces”.¹³

11 Amnesty International Norway, 2012. Jensen, Martine Hoff, 04.12.2012. Uganda: Stopp dødsstraff for homofili!

http://www.amnesty.no/aksjon/flere-aksjoner/uganda-stopp-d%C3%B8dsstraff-homofili

12 ibid … above 10

13 Houston, Andrea, 14.02.2013. Indomitable activist

http://www.xtra.ca/public/National/Indomitable_activist-13165.aspx

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12 The 2013 Anti-Gay Bill became publicly known for the first time in September 2009 and has ever since been debated and voted many times but never became national law. The proposal seemed to have been forgotten when, in late 2012, Rebecca Kadaga, spokeswoman of the Ugandan Parliament, paid an official visit to Canada. At some point, she was asked about the bill by John Baird, the Canadian Minister of Foreign Affairs. Kadaga liked neither the question nor the tone Baird employed and she called him arrogant and accused him of promoting homosexuality. When Kadaga landed in Uganda, she was received as a hero and promised that the bill would be discussed and voted over in the Parliament before 2013.¹⁴ This detail tells us how positively Ugandans react when somebody speaks out publicly against homosexuality. However, the law proposal got stuck and remained silent for nearly one year until it was passed on 20 December, 2013.The Ugandan President assented to the Bill on 24Febru- ary, 2014. The Bill is now national law. ¹⁵

But what is the content of this Bill? What does it add to the current national legislation? The next section presents those provisions of the Bill that describe the acts that are criminalized and the corresponding penalties.

14 Amnesty International Norway, 2012. Jensen, Martine Hoff, 30.11.2012. Kan stå om livet for homofile i Uganda

http://www.amnesty.no/ikke-publisert/kan-st%C3%A5-om-livet-homofile-i-uganda

15BBC, 2013. 20.12.2013. Ugandan MPs pass life in jail anti-homosexual law http://www.bbc.co.uk/news/world-africa-25463942

BBC, 2014. 24.02.2014. Ugandan President Yoweri Museveni signs anti-gay bill http://www.bbc.com/news/world-africa-26320102

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13 3. The Anti-Homosexuality Bill: content and possible effects

3.1. The former legislation concerning Homosexuality

Homosexuality has for many years been forbidden in Uganda. The Ugandan Penal Code from 1950 prohibits (indirectly, by calling it unnatural carnal knowledge) consensual sex between individuals of the same sex and punishes it with life imprisonment. Articles 145-147 of the Code reads as follows:

145. “Unnatural offences.

Any person who:

(a) has carnal knowledge of any person against the order of nature;

(b) has carnal knowledge of an animal; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence and is liable to imprisonment for life”

146. “Attempt to commit unnatural offences.

Any person who attempts to commit any of the offences specified in section 145 commits a felony and is liable to imprisonment for seven years”

147. “Indecent assaults on boys under eighteen.

Any person who unlawfully and indecently assaults a boy under the age of eighteen years

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14 commits a felony and is liable to imprisonment for fourteen years, with or without corporal punishment”.¹⁶

Article 145 is quite unclear. Its indistinct language derives from the British common law sys- tem and refers to sodomy. The provision does not distinguish between homosexual and heterosexual sodomy but in practice only homosexual sodomy is criminalized.¹⁷ As for Article 147, it is not clear either but if we take into account the two previous articles there are reasons enough to suspect that it refers to same sex intercourse. I find Article 147 meaningless because it makes a distinction between decent and indecent sexual assault and my question is: is there a decent sexual assault? A sexual assault is indecent per se no matter the circumstances because it goes against the victim’s right to be free from inhuman or degrading treatment, a right recognized in Article 5 of the Universal Declaration of Human Rights (UDHR). Is the article implying that when a heterosexual commits the assault it is not indecent? If this is the case, the article would be discriminatory and it would pave the way for sexual assaults by heterosexuals who would not be condemned based on that article.

16Uganda Penal Code Act 1950.

http://www.ulii.org/ug/legislation/consolidated-act/120

17 Michael Hollander, Gay Rights in Uganda: Seeking to Overturn Uganda’s Anti-Sodomy Laws, 50 Va. J. Int’l L. at 220 n.2 and 259 (2009)

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15 3.2. Content of the 2013 Bill.¹⁸

3.2.1. Homosexuality and related practices

The Anti-Homosexuality Bill strengthens the provisions of the Penal Code. It is divided into five parts and has 19 clauses. It seems like the Parliament slightly modified the Act before passing it in December 2013. These modifications include a removal of the death penalty provision that the original Bill contained. Nonetheless, no new version of the Bill had officially been made public by the start of my writing and for this reason I will analyze the content of the original proposal. I also think that it is more interesting to study the proposal as it was originally drafted, because this is the document the media and the population worldwide debated.

The author of Uganda’s Anti-Homosexuality Bill was David Bahati, Ugandan politician and member of the Ugandan parliament. Bahati described the proposal the following way: “The bill basically has four components. The first component is to outlaw homosexuality. The se- cond component is about the emerging issues within homosexuality we have seen over time, including the promotion of it. The bill also concentrates on the inducement of children. There is no law that stops same-sex marriage, so we want to outlaw and prohibit it and see rehabili- tation and counselling for the victims of this grave, evil practice”. ¹⁹

18 Bill n.18. The Anti-Homosexuality Bill, 2009. Bills supplement to the Uganda gazette No. 47 Volume CII dated 25^th September 2009.

http://wp.patheos.com.s3.amazonaws.com/blogs/warrenthrockmorton/files/2014/01/The-anti-homosexuality-bill- 2009-2013.pdf

19 Adams, Rachel. 13.12.2012. I Spoke to the Author of Uganda's Anti-Homosexuality Bill http://www.vice.com/read/an-interview-with-the-author-of-ugandas-anti-homosexuality-bill

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16 The first clause of the proposal is an interpretation clause devoted to defining the most relevant concepts it talks about like “serial offender”, “sexual act”, “bisexual” and “homosexual”, among others. For example, a “serial offender” is defined as “a person who has previous con- victions of the offence of homosexuality or related offences”. I find also important in order to understand the scope of the Bill to know how it defines “sexual act”. Sexual act would cover the following behaviors:

a) “Physical sexual activity that does not necessarily culminate in intercourse and may in- clude the touching of another's breast, vagina, penis or anus

b) Stimulation or penetration of a vagina or mouth or anus or any part of the body of any per- son, however slight by a sexual organ

c) The unlawful use of any object or organ by a person on another person’s sexual organ or anus or mouth”

As we can see, the scope of the legal text is wide making it easy to accuse a person of committing the offence the Bill defines.

Clause 2 of the Bill criminalizes what the Act calls “the offence of homosexuality’, which is defined as “the engagement in consensual sex with someone of the same sex as well as the intention of committing the act of homosexuality”. As we can see, the law punishes not only the act but also the intention. But how do we find out that a person has the intention of having sex? The biggest problem here is that, since the act is very recent, there is no case law on what kinds of behaviors can be considered as “intention of committing the act of homosexuality”.

Could I sue a Ugandan citizen because he has been staring at me in a bar?

Although the Bill focuses mostly on homosexuality, it also refers to gender identity on clause 18, which states that “definitions of … gender identity shall not be used in any way to legiti- mize homosexuality, gender identity disorders and related practices in Uganda”. Taking into account the binary definition of “gender” set down in the bill (“gender means male or fe- male”), transgender individuals would also be criminalized irrespective of their sexual orien- tation.

Clause 3 gives rise to the felony called “aggravated homosexuality”, which is punished in the Bill with death penalty. “Aggravated homosexuality” occurs when:

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17 -the person against whom the offence is committed is below the age of 18 years

-the offender is a person living with HIV

-the offender is a parent or guardian of the person against whom the offence is committed -the offender is a person in authority over the person against whom the offence is committed -the victim of the offence is a person with disability

-the offender is a serial offender

-the offender applies, administers or causes to be used by any man or woman any drug, matter or thing with intent to stupefy, overpower him or her so as to thereby enable any person to have unlawful carnal connection with any person of the same sex.

Finally, clause 4 punishes also, with seven years in prison, the attempt to engage in the behavior described in Clause 2, and with life imprisonment in case of attempt of committing the aggravated felony described in the previous clause.

3.2.2. Related offences and penalties

Clauses 7 to 14 address what the Bill calls “Related offences and penalties”.

Clauses 7 and 8 punish with seven years of imprisonment any person who aids, abets, coun- sels or procures another to engage in homosexuality or who conspires with another to induce somebody into homosexuality, respectively.

Clause 10 criminalizes the detention with intent to commit homosexuality and Clause 11 states that “a person who keeps a house, room or place of any kind for purposes of homosex- uality commits an offence and is liable on conviction to imprisonment for seven years”.

Clause 12 imposes the penalty of life imprisonment to those who “purport to contract” a same sex marriage.

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18 Clause 13 punishes the so-called “promotion of homosexuality”. The activities that would give rise to this promotion are, according to the Bill, the following:

a) Participating in production, procuring, marketing, broadcasting, disseminating, publishing pornographic materials for purposes of promoting homosexuality

b) Funding or sponsoring homosexuality or other related activities

c) The offer of premises or other related assets for purposes of homosexuality or promoting homosexuality

d) The use of electronic devices which include internet, films and mobile phones for purposes of homosexuality or promoting homosexuality

e) Acting as an accomplice or attempts to promote homosexuality and related practices.

The promotion is punished with a fine of five thousand currency points or with imprisonment of a minimum of five years and a maximum of seven years or with both fine and imprisonment. If the offender is a corporate body, business, association or non-governmental organization, its certificate of registration will be cancelled and the director, proprietor or promoter will be sentenced to seven years of imprisonment.

Finally, Clause 14 criminalizes the failure of any Ugandan to report within 24 hours a breach of the content of the proposal. It would then be mandatory for all Ugandans to report LGBT- people they know of. The punishment for not complying with this provision is deprivation of liberty up to three years.

3.2.3. Other relevant provisions

To conclude with the content, I would like to mention two more provisions that I consider especially egregious.

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19 Clause 16 relates to extra-territorial jurisdiction. It confers authority to arrest and charge an Ugandan citizen or permanent resident who engages in homosexual activities outside the bor- ders of Uganda. The clause says: “This Act shall apply to offences committed outside Uganda where: a) a person who, while being a citizen of or permanently residing in Uganda, commits an act outside Uganda, which act would constitute an offence under this Act had it been committed in Uganda, or b) the offence was committed partly outside or partly inside Ugan- da”. Therefore, according to this provision, any Ugandan or person residing in Uganda can be charged with the crime of homosexuality even if he or she is outside the country the moment he or she carries out one of the acts criminalized by the Anti-Gay Bill. The general rule, according to article 4.1 of the Ugandan Penal Code, is that the jurisdiction of the courts extends to every place within Uganda. However, article 4.2 says “(2) Notwithstanding subsection (1), the courts of Uganda shall have jurisdiction to try offences created under sections 23, 24, 25, 26, 27 and 28 committed outside Uganda by a Uganda citizen or person ordinarily resident in Uganda”. These sections refer to:

23. Treason and offences against the State.

24. Penalty for acts intended to alarm, annoy or ridicule the President 25. Concealment of treason.

26. Terrorism.

27. Promoting war on chiefs, etc.

28. Time within which to commence prosecution.

As we can see, homosexuality is being treated as if it was as serious as terrorism or crimes against the president and the state. It has been elevated to a level that justifies an exception to the general rule concerning the jurisdiction of the Courts. This detail shows us how lawmak- ers and authorities perceive homosexuality (or how they want the population to perceive it) Finally, Clause 18 (1) declares null and void any international legal instrument whose provisions are contradictory to the spirit and provisions enshrined in the Bill. This provision is unlawful due to the obligations Uganda has committed itself to abide by upon accession to certain human rights treaties.

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20 3.3. Possible effects of the Bill

A lot has been said about the possible effects of the Anti-Homosexuality Bill. Gerald Senton- go, former leader of Sexual Minorities Uganda (SMUG), stated that “If the law is enacted the situation for the LGBT-community will get a lot worse. Many LGBT-people will be arrested.

The police know some of them already, so it will be very dangerous for them to be out in the streets. Moreover, it will be very difficult (for people) to cope with HIV and AIDs. Right now everyone can go to the hospital and get tested for sexually-transmitted diseases. This will be impossible if the law is passed”.²⁰ I cannot help but worry. Taking into account that the situation for LGBT-people in Uganda is extremely tough now, what is it going to happen if it gets worse? What else can happen that has not happened already? In January, 2011, David Kato, LGBT-rights activist, died on the way to the hospital after being brutally beaten at his place in Kampala. The murder of Kato was facilitated by the newspaper “Rolling Stone”, which in October, 2010, published under the headline “Hang them” a list of homosexuals living in Uganda with their names and pictures on the cover.²¹ As we can see, violations of the most fundamental human right, the right to life, occurred even when the Bill was still a proposal.

In Nigeria, dozens of gay men were arrested after the enactment of the new law that makes same-sex marriage and membership or support of gay organizations, associations or clubs a crime.²² In March, 2014, five gay Nigerian men were detained, stripped naked and beaten in public after being reported by a sexual partner who was blackmailing them. ²³ In the same

20 Amnesty International Norway, 2013. Bakken, Ingrid Linde. 20.02.2013. LHBT-aktivist i Uganda: Frykten er verst. http://www.amnesty.no/ikke-publisert/lhbt-aktivist-i-uganda-%E2%80%93-frykten-er-verst

21 Amnesty International, 2011. Hald, Merete. 27.01.2011. Homoaktivist brutalt myrdet i Uganda.

http://www.amnesty.no/aktuelt/flere-nyheter/uganda

22 The telegraph, 2014. Debusmann, Bernd. 14.01.2014. Dozens of men arrested for being gay after Nigeria quietly passes homosexuality legislation.

http://www.telegraph.co.uk/news/worldnews/africaandindianocean/nigeria/10571660/Dozens-arrested-after-anti- gay-law-passed-in-Nigeria.html

23 Zapata, Jean Paul. 31.03.2014 Gay Nigerians stripped naked and whipped in public after sex party.

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21 month, another four Nigerian men received 20 lashes each after an Islamic court in the northern city of Bauchi convicted them of gay sex. ²⁴ Violence against the Nigerian LGBT-

community has become part of daily life. According to some witnesses, in February, 2014, a mob attacked some young gay men in a neighborhood in Abuja, the capital of Nigeria, beating them with nail-studded clubs and whips. Afterward, four of the victims were dragged to the police station where they continued to be beaten and insulted by police officers.²⁵ Nigeria is a good example of what could happen in Uganda in the future.

Asma Jahanghir, former Special Rapporteur on extrajudicial executions, made a comment which I consider worth highlighting. She declared that “The criminalization of matters of sex- ual orientation increases the social stigmatization of these persons. This in turn makes them more vulnerable to violence and human rights abuses, including death threats and violations of the right to life, which are often committed in a climate of impunity”.²⁶ I completely agree with her. When a certain act is criminalized many people get scared because not all of them have the capacity or the will to think and analyze whether the act is right or wrong, they just follow the rules. The particular effect in Uganda may then be that many will start considering homosexuality a criminal act and this will render the fight for equality extremely difficult.

Another scholar, Sylvia Tamale, addresses the social implications that the Bill can have. In her opinion, since homosexuality is defined in such a broad way in the Bill (as to include

“touching another person with the intention of committing the act of homosexuality”) all citi- zens (homosexuals and heterosexuals) will get affected. I think she is right if we acknowledge that now anyone can bring false accusations against others just to damage them like it happened in 2009 with Pastor Robert Kayanja. Kayanja worked for the Miracle Centre Cathedral

http://www.gaystarnews.com/article/gay-nigerians-stripped-naked-and-whipped-public-after-sex-party310314

24 BBC News Africa, 2014. 06.03.2014. Nigeria gays: 20 lashes for 'homosexual offences'.

http://www.bbc.com/news/world-africa-26469501

25 Nossiter, Adam. 15.02.2014. Mob Attacks More Than a Dozen Gay Men in Nigeria’s Capital

http://www.nytimes.com/2014/02/16/world/africa/mob-attacks-gay-men-in-nigerias-capital.html?_r=1

26 Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Ms. Asma Jahangir,

E/CN.4/2001/9, 11 January 2001,para.50.

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22 of Kampala and was accused of sexually abusing two teenagers. The complaints were with- drawn but it was later discovered that other pastors had assisted the teenagers in filing their complaints. According to some Kayanja’s supporters, the aim of the pastors who helped bring out the accusations was to damage Kayanja’s reputation before the visit of American preacher Benny Hinn.²⁷

As for the provision that obliges to report “the offender” within 24 hours, it can have, as Ta- male highlights, devastating consequences for families. Compliance with this clause obliges a relative to report another relative if the former knows that the latter has engaged in homosexual behavior. In addition, if we think about it, the same rifts and conflicts will appear between friends, doctors and patients, teachers and students and so on. Dr. Stella Alamo Talisuna, Ex- ecutive Director of “Reach Out”, a Catholic organization that aims to curb the spread of HIV infection among less privileged members of the society, expressed that "As health workers, we have our own ethical codes, which are so, so old. They bind us to confidentiality. The bill will conflict with these existing codes. Bahati needs to understand the magnitude of the is- sue.²⁸

Finally, the law will have very negative effects for international organizations and NGOs fighting for human rights as well because they will not be able to work freely since Clause 13 seeks to silence any kind of activism, advocacy, education or training that is likely to promote homosexuality.

27 Tamale, Sylvia. A Human Rights Impact Assessment of the Ugandan Anti-homosexuality Bill 2009. p.5.

http://www.equalrightstrust.org/ertdocumentbank/Sylvia.pdf. pp.52 and 57

28 Ibid … above 19

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23 4. The Bill in a human rights perspective

In this section, I discuss the Anti-Homosexuality Bill from a legal perspective. This includes an analysis of the human rights and freedoms the Act violates in view of the treaties Uganda is a party to.

4.1. The unlawfulness of Clause 18

The first controversy that comes up in terms of human rights compliance concerns Clause 18 of the Bill. This clause nullifies any international treaty, protocol, declaration or convention that is contradictory to the spirit and provisions of the Act. This provision is unlawful because it goes against four pieces of legislation Uganda has acceded to:

-The African Charter on Human and Peoples’ Rights

-The International Covenant on Economic, Social and Cultural Rights (ICESCR) -The International Covenant on Civil and Political Rights (ICCPR)

-The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun- ishment (CAT)

Clause 18 clashes also with the national Constitution and the Vienna Convention on the Law of Treaties. Uganda is not a party to this Convention but as Amnesty International declared in its 2010 report on the Anti-Homosexuality Bill, it must however respect certain provisions of the Convention that are considered a part of International Customary Law.²⁹

29 Amnesty International 2010. Uganda: Anti-Homosexuality Bill is Inherently Discriminatory and Threatens Broader Human Rights. 07.01.2010. AFR 59/003/2010.

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24 4.1.1. The African Charter

Uganda ratified this Charter in 1986 and Clause 18 is not in conformity with articles 1 and 2 thereof. Article 1 of the Charter states that the Member States of the Organization of African Unity that are parties to the Charter undertake to adopt legislative or other measures to give effect to the rights and freedoms recognized therein. As for Article 2, it establishes the principle of non-discrimination of any kind in the enjoyment of those rights and freedoms. As I will explain later, the Bill violates some of the rights recognized in the Charter as well as the principle of non-discrimination. Consequently, Uganda is not giving effect to the content of the Charter within the meaning of Article 1.

4.1.2. ICESCR

Uganda acceded to this Convention in 1987 and violates it through Clause 18 in the following way:

Article 2 of the Covenant says:

“1. Each State Party to the present Covenant undertakes to take steps (…) with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

http://www.amnesty.org/en/library/asset/AFR59/003/2010/en/befd26d0-8051-469b-af76- b76858c423ff/afr590032010en.pdf

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25 2. The States Parties to the present Covenant undertake to guarantee that the rights enunciat- ed in the present Covenant will be exercised without discrimination of any kind (…)

Article 4 of the Covenant declares:

“The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compati- ble with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”

The Bill violates some of the rights recognized in this Convention. As we can see, Uganda committed itself upon accession to take steps to implement the convention and can only subject its rights and freedoms to limitations when it is necessary for the general welfare. Many Ugandans think that homosexuality is an illness or an evil practice and for this reason some might resort to the protection of general welfare as a justification for LGBT-persecution. They would probably reproduce Bahati’s words “we want to avoid the inducement of children”.³⁰ But what do we mean by general welfare and what happens to the general welfare of LGBT- people? Is it fair to be imprisoned or even killed just for being the way you are? Is it reasona- ble to be expelled from school, fired from your job or isolated from your family just because you feel attracted to people of the same sex? We would have to look at case law in order to build a definition of general welfare but that is not the purpose of this thesis. In any case, a limitation based on general welfare has to be compatible with the rights of the Covenant and it is very clear that this is not the case in Uganda because homosexuals are not benefiting from it. Consequently, if a Ugandan resorted to general welfare in order to justify a limitation on the rights of homosexuals, that limitation would not be lawful.

30 Ibid … Above 19

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26 4.1.3. ICCPR

Uganda became party to the ICCPR through accession in 1995 and some of the rights of this convention are compromised too by the Bill. As it can be implied by Article 2 of the convention, states parties are responsible for respecting, ensuring and taking the necessary steps to guarantee the rights recognized therein without discrimination. Moreover, this article highlights the obligation of states to “adopt such laws (…) as may be necessary to give effect to the rights recognized (…)”.

4.1.4. CAT

Uganda acceded in 1986 to the CAT and must comply with its Article 2, which points out that

“1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circum- stances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”

I have shown earlier documented cases of torture and ill-treatment towards the LGBT- community in Uganda. This means that the CAT was already being violated before the Anti- Homosexuality Bill being part of national laws.

4.1.5. The Constitution of Uganda

The Constitution of Uganda declares in article 287 that the country does not relinquish its international obligations arising from the treaties Uganda became a party to prior to the passing of the 2005 Constitution.

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27 Article 287:

“Where—

(a) any treaty, agreement or convention with any country or international organization was made or affirmed by Uganda or the Government on or after the ninth day of October, 1962, and was still in force immediately before the coming into force of this Constitution; or

(b) Uganda or the Government was otherwise a party immediately before the coming into force of this Constitution to any such treaty, agreement or convention, the treaty, agreement or convention shall not be affected by the coming into force of this Constitution; and Uganda or the Government, as the case may be, shall continue to be a party to it”.³¹

4.1.6. The Vienna Convention

Uganda has never become party to the Vienna Convention on the Law of treaties but this Convention has certain provisions that are considered as part of International Customary Law.

Article 38.1(b) of the Statute of the International Court of Justice, which lists the sources of International Law, defines international custom (also known as International Customary Law)

“as evidence of a general practice accepted as law”. Therefore, International custom is born as a result of the combination of two elements: state practice and the acceptance of such practice as law. Concerning the first requisite, the practice must be constant and uniform on the part of most states. That was the interpretation of the International Court of Justice in the Asy- lum Case (Colombia v. Peru).³² As for the second requisite, it is known as “opinio iuris” and involves that most states must feel that a certain action or omission is required by law. Once

31 CONSTITUTION OF THE REPUBLIC OF UGANDA, 1995.

http://www.parliament.go.ug/new/images/stories/constitution/Constitution_of_Uganda_1995.pdf

32 Judgement 20 November 1950, (1950) ICJ Reports 266

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28 international custom is formed, all states are bound by it even if they did not contribute to its formation.³³ As it is argued by the 2010 report from Amnesty International, Uganda is violating articles 26 and 27 of the Vienna Convention because these articles have given rise throughout the years to the formation of International Customary Law and thus bind all states, parties and non-parties. Article 26 establishes the principle of “Pacta sunt servanda” (“Every treaty in force is binding upon the parties to it and must be performed by them in good faith”). As for article 27, it points out that “A party may not invoke the provisions of its inter- nal law as justification for its failure to perform a treaty”. Consequently, not only is Uganda violating some treaties it is a party to but it is also justifying the non-compliance by resorting to national law. ³⁴

4.2. The rights and freedoms the Bill violates

4.2.1 The principle of non-discrimination

Clause 2 criminalizes consensual same-sex conduct and, by doing that, it is violating the principle of non-discrimination recognized in Article 5 of the national Constitution, which says:

(1) “All persons are equal before and under the law in all spheres of political, economic, so- cial and cultural life and in every other respect and shall enjoy equal protection of the law.

(2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or eco- nomic standing, political opinion or disability”

33 Javaid Rehman … above 7 p.22.

34 Remember that the Bill has its roots in the Penal Code, which already punishes same sex intercourse

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29 (…)

The principle is also enshrined in Article 2 of the African Charter, the ICCPR and the ICESCR. The Human Rights Committee, the UN body in charge of monitoring states’ compliance with the ICCPR, confirmed that sexual orientation is a ground of discrimination under the provisions of the Covenant.³⁵

In the same line, the African Commission on Human and Peoples’ Rights, which monitors states’ compliance with the African Charter, highlighted the importance of non-discrimination and declared that the principle translates into “equality of treatment for individuals irrespec- tive of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation”.³⁶

4.2.2. The right to life

Clause 3 punishes the offence of “aggravated homosexuality” with death penalty, something that goes against the right to life. This right is recognized in the Constitution of Uganda in Article 22. It is also protected by Article 6 of the ICCPR, which states that “1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbi- trarily deprived of his life. 2. In countries which have not abolished the death penalty, sen- tence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the pre- sent Covenant and to the Convention on the Prevention and Punishment of the Crime of Gen- ocide. (…)”

35 UN Human Rights Committee, Communication No. 488/1992: Australia. CCPR/C/50/D/488/1992, 4 April 1994 (Toonen v Australia). Paragraph 8.7

36 African Commission on Human and Peoples’ Rights, twenty first activity report, EX.CL/322 (X). Communi-

cation 245/2002 – Zimbabwe Human Rights NGO Forum/Zimbabwe. Paragraph 169

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30 According to the Human Rights Committee (HRC), the expression “most serious crimes”

must be read restrictively to mean that the death penalty should be a quite exceptional meas- ure”.³⁷

The right to life of LGBT-people was already violated several times before the Bill came into force. A clear example is the murder of David Kato that I described in section 3.3.1.

4.2.3. The right to privacy

The right to privacy is affected by Clause 14 which introduces the crime of “failure to dis- close the offence” of homosexuality within 24 hours. The Constitution of Uganda contains this right in Article 27:

(1) “No person shall be subjected to—(a) unlawful search of the person, home or other prop- erty of that person; or (b) unlawful entry by others of the premises of that person.

(2) No person shall be subjected to interference with the privacy of that person’s home, corre- spondence, communication or other property”

From my point of view, the right to privacy is violated in the way it was described by the HRC in Toonen v Australia, where it was established that “adult consensual activity in private is covered by the concept of ‘privacy”.³⁸ As I argued concerning the right to life, the privacy of LGBT-people in Uganda has been constantly violated before the Bill became national legislation. As I mentioned in previous sections, police officers constantly raid the homes and offices of homosexuals and some national magazines publish their names and faces. The right to privacy is also protected by Article 17 of the ICCPR.

37 Human Rights Committee, General Comment No. 6 (1982). Paragraph 7

38 Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994). Paragraph 8.2

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31 4.2.4. The right to health

Clause 7, which condemn “aiding and abating homosexuality”, and 13, which lists a series of activities amounting to the offence called “promotion of homosexuality”, could have a very negative impact on the right to health, particularly on the availability, accessibility and quality of health services for LGBT-people. Uganda committed itself to respect the right to health when it became party to the African Charter, whose article 16 points out that “every individu- al shall have the right to enjoy the best attainable state of physical and mental health. State Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick”. This right is also recognized by article 12 of the ICESCR. When I talked about the social implications that they Bill could have, I mentioned that rifts were likely to appear between doctors and patients because according to the Bill a doctor would have the obligation to report a homosexual pa- tient, thus breaching the confidentiality duty. For example HIV and AIDS are often defined as a “gay illness” due to the fact that its transmission is easier with the practice of anal sex. For this reason, many people living with it would not go to the hospitals to get treatment for the fear of being accused of being homosexuals. At the same time, any effort made by schools or organizations to raise awareness on HIV issues could be considered as “promotion of homosexuality”. This would be like a vicious circle because the less people know about HIV the more those living with it will be stigmatized.

4.2.5. The right to liberty and security

Article 9.1 of the ICCPR says that “Everyone has the right to liberty and security. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty ex- cept on such grounds and in accordance with such procedure as are established by law”. The prohibition exists also in the African Charter (article 6) and in the Constitution of Uganda (article 23). Unjustified or arbitrary detentions are then forbidden in International Law. I agree with the opinion of the UN Working Group on Arbitrary Detention, which said that the deten-

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